United States District Court, E.D. Louisiana
FAIRWAY MEDICAL CENTER, L.L.C.
MCGOWAN ENTERPRISES, INC.
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE
the Court is the Unopposed Motion for Approval of
Attorneys' Fees and Expenses and for Service Award. [Doc.
#56]. As noted in its title, no opposition has been filed,
and counsel for defendant represented at the class action
fairness hearing that defendant would not oppose it. Having
reviewed the pleadings and the law, the Court rules as
Facts and Procedural History
underlying facts of this lawsuit are unimportant to the
resolution of this motion, apart from noting that this is a
class action under the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227 et seq.
Plaintiff accused defendant of inundating its fax machine
with junk faxes.
consenting to proceed before the undersigned, on November 27,
2017, the parties filed an ex parte motion for
preliminary approval of a settlement [Doc. #49], which this
Court granted the following day. [Doc. #50]. The pleading
informed the Court that the parties had settled for a lump
sum in the amount of $3, 250, 00.00. On December 13, 2017,
the parties filed an ex parte motion to establish a
qualified settlement fund, [Doc. #54], which this Court also
granted the following day. [Doc. #55]. Both parties then
filed briefs in support of the final approval of class
settlement. [Doc. #58 & #59]. On March 20, 2018, this
Court held a fairness hearing at which both counsel
articulated the terms of the settlement. After proper notice,
no class member had opted out of the class, and none had
objected to the settlement. The Court therefore granted the
motion for final approval of the class action settlement the
same day. [Doc. #60]. Counsel for plaintiffs now move for
their attorneys' fees and costs, which, as noted, is
unopposed by defendant.
Law and Analysis
Fees of Class Counsel
well established that when a representative party has
conferred a substantial benefit on a class, counsel is
entitled to attorneys' fees based upon the benefit
obtained. Boeing Co. v. Van Gernert, 444 U.S. 472,
478 (1980). In cases such as this, where a common settlement
fund is established, courts have recognized that appropriate
fee awards encourage redress for wrongs caused to entire
classes of persons and deter future misconduct of a similar
nature. See, e.g., Mashburn v. Nat'l Healthcare,
Inc., 684 F.Supp. 660, 687 (M.D. Ala. 1988); see
also Deposit Guar. Nat'l Bank v. Rope, 445 U.S. 326,
settlement fund cases, courts traditionally use one of two
methods for determining attorneys' fees: (1) the
percentage method, in which the court awards fees as a
reasonable percentage of the settlement fund; or (2) the
lodestar method, in which the court computes fees by
multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate and, in its
discretion, applying an upward or downward multiplier.
Union Asset Mgmt. Holding A.G. v. Dell, Inc., 669
F.3d 632, 642-43 (5th Cir. 2012).
Dell, the Fifth Circuit clarified its previous
decision in In re: High Sulfur Content Gasoline Prods.
Liab. Litig., 517 F.3d 220 (5th Cir. 2008), and held
that the lodestar method is not required in assessing
attorneys' fees in class action suits with a common
settlement fund. Rather, the Dell court
“endorse[d] the district court's . . . use of the
percentage method” when calculating attorneys' fees
in common fund class action cases. Id. at 644. When
using the “percentage method[, ] . . . the court awards
fees as a reasonable percentage of the common fund.”
Id. at 642. “[D]istrict courts in [the Fifth]
Circuit regularly use the percentage method, ” which
“allows for easy computation[, ] . . . aligns the
interests of class counsel with those of the class
members” and “reduces incentives to protract
litigation.” Id. at 643; see also Jenkins
v. Trustmark Nat'l Bank, 300 F.R.D. 291, 311
(S.D.Miss. 2014) (adopting percentage approach and awarding
one-third of the four-million dollar common fund); In re
Vioxx Prods.. Liab. Litig., MDL No. 1657, 2013 WL
5295707, at *3 (E.D. La. Sept. 18, 2013) (adopting the
percentage-of-the-fund approach to calculate attorneys'
fees in a common fund class action case). “It is not
unusual for district courts in the Fifth Circuit to award
percentages of approximately one third.” Collins v.
Sanderson Farms, Inc., 568 F.Supp.2d 714 at 729 (E.D.
Braud v. Transport Service Co. of Illinois, Civ. A.
No. 05-1898, 2010 WL 3283398 (E.D. La. Aug. 17, 2010), this
Court stated that “the Fifth Circuit has recognized the
propriety of the percentage fee method in situations in which
each member of a class has an undisputed and mathematically
ascertainable claim to part of [a] judgment.”
Id. at *9. As a result, the undersigned applied the
percentage fee method in accordance with the case law in this
circuit and at the request of counsel. Id. The Court
finds that the Braud case and this lawsuit are
identical in that the class members in both class actions
received/will receive a mathematical ascertainable claim to
the total settlement fund. Given the sound policy
considerations for applying the percentage method, as well as
the trend in this district for adopting this method, this
Court likewise adopts the percentage method in this case.
See In re Pool Prods. Distrib. Mkt. Antitrust
Litig., 2015 WL 4528880, at *23 (E.D. La July 27, 2015)
(awarding one-third of settlement amount without lodestar
cross-check); Jenkins v. Trustmark Nat'l Bank,
300 F.R.D. 291, 310 (S.D.Miss. 2014) (awarding one-third fee
of $4 million settlement amount without lodestar
cross-check); Burford v. Cargill, Inc., Civ. A. No.
05-283, 2012 WL 5471985, at *1 (W.D. La. Nov. 8, 2012)
(awarding one-third without performing lodestar cross-check).
in the Fifth Circuit that utilize the percentage method then
apply the twelve factors set forth in Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), to
cross check the reasonableness of the percentage. Once a
benchmark percentage is established, the Johnson
factors are utilized by the Court to determine if an upward
or downward adjustment is warranted. See Kemp v. Unum
Life Ins. Co. of Am., Civ. A. No. 14-944, 2015 WL
8526689 (E.D. La. Dec. 11, 2015).
the parties reached an agreement on the payment of
attorneys' fees after reaching an agreement on settling
this class action. As part of this agreement, defendant does
not oppose class counsel's request for attorney fees of
one-third of the $3, 250, 000.00 settlement amount. Class
counsel's contract of representation signed by plaintiff
provides for a one-third attorney fee award on all benefits.
The Court thus finds that the appropriate benchmark in this
case is one-third. See, e.g., In re: Pool Prods. Distrib.
Mkt. Antitrust Litig., MDL No. 2328. 2016 WL 235781
(E.D. La. Jan. 20, 2016) (awarding one-third of the
settlement fund for expenses only, noting that, “this
is the same amount that would have resulted if class counsel
had requested an award consisting of both expenses and
attorneys' fees of one-third the settlement fund, which,
as the Court has already noted, is consistent with awards
that other courts in this Circuit have found to be
reasonable.”); Kemp, 2015 WL 8526689, at *8-10
(approving one-third attorneys' fees, plus expenses from
a $3, 738, 402.00 settlement fund); Vioxx, 2013 WL
5295707, at *4 (setting one-third set as the benchmark);
Burford, 2012 WL 5471985, at *2 (setting benchmark
at one-third in light of the settlement agreement, contract
of representation, Fifth Circuit precedent, and the
affidavits in the record); In re Bayou Sorrel Class
Action, No. 6:04CV1101, 2006 WL 3230771 (W.D. La. Oct.
31, 2006) (awarding plaintiff's counsel fees of 36% of
the common ...